An attorney for Hillary Rodham Clinton made clear his views on the ethics of a "a public relations offensive" launched in a recent New York Times article in this June 3, 1997 letter to Whitewater Independent Counsel, Kenneth Starr. Starr's reply follows the text of Kendall's letter.

 
 
LAW OFFICES 
 
WILLIAMS & CONNOLLY 
 
725 TWELFTH STREET, N.W. 
 
WASHINGTON, D. C 20005-5901 
 
(202)434-5000 
 
FAX (202) 434-5029 
 
DAVID E. KENDALL 
 
(202) 434-5145 
 
June 3, 1997 
 
The Honorable Kenneth W. Starr 
 
Independent Counsel 
 
Office of the Independent Counsel 
 
1001 Pennsylvania Avenue, N.W. 
 
Suite 490-North 
 
Washington, D.C, 20004 
 
BY HAND 
 
Dear Judge Starr: 
 
My correspondence with you concerning various issues relating to the 
so-called "Whitewater" investigation has previously been conducted 
privately. Your public relations offensive in Sunday's New York Times 
magazine ("Kenneth Starr, Trapped," by Jeffrey Rosen), however, leaves me 
no choice but to respond publicly. 
 
The course you have chosen is unprecedented and profoundly ill-advised for 
a number of different but mutually reinforcing reasons. First, the conduct 
exemplified in the magazine article is wholly inconsistent with your 
professional obligations as a prosecutor. You have behind you the truly 
awesome might of the federal government: the power to subpoena evidence and 
testimony, the power to conduct grand jury investigations anywhere in the 
United States, an unlimited budget, unrestricted utilization of the full 
resources of the FBI, the IRS, and other investigative agencies, and 
(finally) the power to threaten and prosecute criminal charge. This awesome 
might carries with it the responsibility to conduct grand jury 
investigations fairly so that the reputations of those investigated but not 
charged will not be besmirched. 
 
To this end, legal and ethical obligations of silence are imposed upon you 
and your staff. These obligations are set forth in ethical rules (the Rules 
of Professional Conduct of Arkansas and the District of Columbia, which 
govern prosecutors in both jurisdictions; the ABA Standards for Criminal 
Justice Relating to Prosecution Function and Fair Trials; the National 
Prosecution Standards, published by the National District Attorneys 
Association), Department of Justice guidelines, the Federal Rules of 
Criminal Procedure (particularly Rule 6(e)), and the general prosecutorial 
traditions of the Department of Justice. Rule 6(e) explicitly prohibits 
government attorneys from disclosing "matters occurring before the grand 
jury," and this phrase is construed by the courts very broadly to encompass 
"events which have already occurred before the grand jury, " In re Grand 
Jury Investigation, 610 F,2d 202, 216-217 (5th Cir. 1980), as well as 
"matters which will occur," id. at 217, including "the strategy or 
direction of the investigation," Fund for Constitutional Government v. 
National Archives & Records Service, 656 F.2d 8546, 869 (D.C. Cir. 1981). 
Former Watergate Special Prosecutor Archibald Cox has stated the general 
understanding that " 'it would be a good rule' " if independent counsels 
"did not make statements on a case under investigation before indictments. 
'I held two or three press conferences,' Cox said, 'I don't think I made 
any speeches or lectures or gave any individual . . . interviews. And I 
don't think I ever went out to explain the strength of the case.' " (USA 
Today, Dec. 3, 1996, p.8A). 
 
The comments of you and persons in your office, directly and indirectly 
quoted in the magazine article, flout all these obligations. Mr. Rosen 
notes that you "provided background assistance for this article but 
declined to be quoted directly" (emphasis added). I am hard pressed to 
discern what this meaningless formal fig leaf really signifies in the 
context of an article that frequently quotes members of your staff by name, 
refers authoritatively to your own personal beliefs, emotions and 
prosecutorial strategy, and attributes statements and explanations to 
"prosecutors" in your office. Perhaps most troubling are the plain 
violations of grand jury secrecy. For example, the article discloses the 
following: 
 
"What about Hillary Clinton? When Starr alluded, during the McDougal 
sentencing, to newly discovered documents and witnesses, 'previously 
unknown to us [and] known to very few people,' he was referring, according 
to prosecutors, to documents from Arkansas that might cast light on her 
representation of Madison Guaranty and the truthfulness of her statements 
to federal investigators. By contrast, on April 22, when Starr asked for a 
six-month extension of the Whitewater grand jury in Arkansas, he noted that 
the jury had heard 'extensive evidence of possible obstruction of the 
administration of justice.' Here, prosecutors say, he was referring to 
events in Washington relating to the disappearance of Hillary Clinton's 
billing records." (Emphasis added.) 
 
Grand jury secrecy rules are aimed at preventing precisely this kind of 
leak-and-smear damage. You well know that you have no evidence whatsoever 
that Mrs. Clinton had anything to do with any "disappearance" of the 
Madison Guaranty billing records, yet you've chosen to comment publicly on 
her "truthfulness." To make sure the slur is not missed, the article 
reports that "lawyers in Starr's office make no attempt to squelch 
speculation that they have weighed the possibility of indicting her." True, 
the sentence is not technically accusatory (your staff might have "weighed 
the possibility of indicting" you, for all I know), but in context, the 
derogatory intimation is clear, particularly because "a lawyer close to 
Starr's investigation" (and in context, the reader knows who this must be!) 
ominously states that "'If notes from the White House counsel's office 
indicate that a person's story changed over time, you could have countless 
issues of possible false statements to the grand jury." This sort of public 
musing about the thinking of the grand jury in exactly what Rule 6(e) is 
designed to prohibit. This Rule leaves no discretion to a prosecutor to 
decide, as you apparently have, that the public interest somehow warrants 
public (although unattributed) airing of the grand jury's deliberative 
process, or of the evidence it may or may not have gathered about the 
conduct of any particular individual. 
 
And again, Mr. Bates is quoted with regard to your stated desire that all 
you want from Ms. Susan McDougal is "the truth": "Bates . . . added that 
when Susan McDougal says that the President and the First Lady didn't break 
the law, 'she could be referring to the underlying banking events' and 
dodging the question of whether Bill and Hillary Clinton lied in their 
statements to Whitewater investigators. 'I'm not sure she has ever publicly 
said he testified truthfully,' said Bates." What conceivable right do 
representatives of the IC have to speculate like this? This is a gross 
breach of prosecutorial ethics and betrays an appalling ignorance of 
constitutional procedures. As Archibald Cox has written, " [i]n the end, 
independent counsels must see their function not as pursuit of a target to 
be wounded or destroyed, but as an impartial inquiry with as much concern 
for public exoneration of the innocent as for indictment of the guilty." 
(New York Times, Dec., 12, 1996, p,21), The perception that your 
investigation has proceeded not in pursuit of a target but even-handedly in 
search of the "truth" might not be shared by some of those who have been in 
contact with it, such as Ms. Sarah Worsham Hawkins, Ms. Rosalie Wade, Mr. 
Steve Smith, Ms, Betty Tucker, Ms. Bruce Lindsey, the children of Mr. 
Herbie Branscum and Mr. Rob Hill, and others. In any event, it's both 
fundamentally unfair and inconsistent with normal prosecutorial practice to 
impugn a witness by unsupported and insupportable innuendo. 
 
Second, your PR offensive is deceptive, The article's reported suggestion 
by you that the President and Mrs. Clinton have not cooperated with your 
investigation is, as you must know, unfounded and false. Their cooperation 
has been unprecedented. They have each voluntarily given testimony you have 
requested under oath at the White House three times in the past three 
years. They have answered written interrogatories from you. Mrs. Clinton 
appeared before your now-disbanded Washington, D.C., grand jury to give 
several hours of testimony in January, 1996. The Clintons have produced 
more than 90,000 pages of documents So you, and on many different occasions 
we have provided you information informally on the clients' behalf. As you 
well know, the President and Mrs. Clinton have waived attorney-client, work 
product, and any accountant's privilege over all documents and testimony 
with respect to the Whitewater investment and other historical matter. 
which you have been investigating. 
 
The suggestion in the article that the present litigation over your demand 
for two set. of interview notes taken by White House Counsel is an attempt 
to hide evidence or slow your investigation rather than a serious and good 
faith disagreement over principle is wholly and demonatrably false. As you 
know, the claims of attorney-client and work product privilege here do not 
arise from the underlying transactions you are investigating but rather 
from legal relationships arising out of and necessitated by this 
investigation itself. The notes would never have been generated unless 
there had been a good-faith belief in the existence of the privileges. Two 
judges have declined to enforce your request for the notes, and two judges 
on the Court of Appeals panel have ordered the notes produced. The matter 
in now before the Supreme Court, and it is by no means my intention to 
argue the matter in this letter. But the " spin" on these events set out in 
the article is simply wrong. As you well know, this fight is about 
principle, not the notes. I offered to you to try to work out with the 
White House a non-disclosure agreement similar to the one your office 
signed in December, 1995 (with respect to the notes Bill Kennedy took of a 
1993 meeting) whereby you would be given the two sets of notes but the 
parties would agree to maintain their respective legal positions, You 
rejected that overture, and now the Supreme Court will decide the matter. 
 
Finally, a public relations campaign, whether open, as in Sunday's magazine 
article, or more indirect, as in the making of public speeches in 
controversial forums using code words, subverts the very institution you 
and your office embody. The purpose of creating an "independent" counsel 
was not only to separate that prosecutor from the Department of Justice but 
also to insulate the person so appointed from a public perception of 
partisan involvement. As you know, the first Whitewater independent counsel 
was removed by the Special Division because (as the Court stated) the Act 
"contemplates an apparent as well as the actual independence on the part of 
the Counsel" and Mr. Fiske had been appointed by General Reno. It is truly 
baffling how you can fail to appreciate the fundamental need to keep your 
profile low, your public comments discreet, and every appearance 
nonpartisan. 
 
The magazine article portrays you as engaging in considerable hand-wringing 
over the delays in the investigation, as it crawls into its fourth year. I, 
of course, completely agree that the interest of the country, your office, 
and all those who may be under investigation are best served by a 
comprehensive but prompt investigation. Indeed, Sec. 593 (b)(2) of the 
independent counsel statute provides that the Special Division will only 
appoint as independent counsel someone who "will conduct the investigation 
and any prosecution in a prompt, responsible, and cost-effective manner." 
The law further requires that the individual appointed IC "will serve to 
the extent necessary to complete the investigation and any prosecution 
without undue delay." Ibid. Some delay, of course, is inherent in every 
criminal investigation. (This is hardly the first time privilege has been 
claimed in response to grand jury subpoena-- such litigation is a frequent 
occurrence and a well established check on prosecutorial power.) What is 
needed is a whole-hearted commitment to winding up this investigation in an 
appropriate way. This means not chasing every rainbow or every partisan 
rumor, whether in the hope of wounding or destroying a target, or for any 
other reason. This investigation will not have been a failure if it does 
not result in the indictment of particular individuals. Mature, fair, and 
independent judgment is the very essence of what is called for, and thus it 
is hardly reassuring to read that "Starr seems to have decided that if a 
zealous prosecutor is what his critics want, that is what his critics shall 
have." The present public posturing on your part suggests to me a total 
loss of perspective: I don't believe that there's ever been a jugular here 
for you to go for, but in the last several months, you've demonstrated an 
unerring instinct for the capillary. 
 
The magazine article asks whether the "most sympathetic person " in this 
whole investigation might be you yourself because you cannot "disentangle" 
yourself from the investigation With all respect, I don't believe your 
situation is either intolerable or irremediable. The solution is to abandon 
your public relations offensive, get on with your investigation in the 
manner of previous independent counsels, and bring it to a speedy 
conclusion. Neither the legal process nor the country is well or properly 
served by Sunday's magazine article. 
 
Sincerely, 
 
/S/ 
 
David E. Kendall. 
 
============ 
 
Here is Independent Counsel Kenneth Starr's reply: 
 
Office of the Independent Counsel 
 
Redding Building 
 
1701 Centerview Drive, Suite 203 
 
Little Rock, Arkansas 72211 
 
(501) 221-8707 
 
June 3, 1997 
 
David E. Kendall, Esq. 
 
Williams & Connolly 
 
725 Twelfth St., N.W. 
 
Washington, DC 20005-5901 
 
Dear Mr. Kendall: 
 
I have received your letter of this morning, which warrants immediate 
response. 
 
First, as to your specific allegations stemming from the recent article, we 
adamantly reject the suggestion of impropriety. We have not violated grand 
jury secrecy rules. The examples you cite are referred to in public court 
proceedings. For example, the billing records investigation is expressly 
discussed in our Supreme Court brief in opposition. 
 
Second, your comments on page 4 of your letter are completely inaccurate, 
as you know. Neither you nor the White House ever offered unconditionally 
to produce the Sherburne or Nemetz notes on a non-waiver basis. Rather, 
only after the Eighth Circuit ruled in our favor did you offer to attempt 
to produce the notes on a non-waiver basis--and even then, only if the 
parties could successfully persuade the Eighth Circuit to withdraw its 
opinion. As we have previously informed you, however, your suggestion 
reflected a basic misunderstanding of the Supreme Court's vacatur 
jurisprudence. The parties do not have the power to erase a court of 
appeals precedent from the case books. See Bancorp. Mortgage Co. v. Bonner 
Mall Partnership, 115 S. Ct. 386, 392 (1994) (rejecting procedure by which 
litigants can "roll the dice rather than settle" in the hope that "an 
unfavorable outcome can be washed away by a settlement related vacatur"). 
Offers of compromise thus should be made before a district court decision, 
not after the resources of the courts have been expended. See In re 
Memorial Hospital, 862 F. 2d 1299, 1299, 1302 (7th Cir. 1988) ("History 
cannot be rewritten. There is no common Law Writ of erasure. . . If parties 
want to avoid stare decisis and preclusive effects, they need only settle 
before the district court renders a decision."). Neither you nor the White 
House tendered a non-waiver proposal in 1996, however, when it would have 
allowed us to avoid litigation entirely. 
 
Third, your general comments regarding public statements by this office 
warrant comment. In our view, it is proper for a prosecutor to fulfill "the 
public's right to be as fully informed as possible about the work of his 
office." Watergate Special Prosecution Task Force Report 227, 229 (1975). 
We thus have studied similar past investigations for initial guidance. Leon 
Jaworski appeared on Issues and Answers, Today, Meet the Press, and other 
news programs. Judge Lawrence Walsh appeared on Nightline, This Week with 
David Brinkley, Good Morning America, and McNeil/Lehrer Newshour. Despite 
these precedents and numerous entreaties to appear on similar programs this 
office has frowned on such appearances. 
 
This Office instead has preferred an orderly process to fulfill the 
traditional and well-recognized public information function. I occasionally 
have given speeches at law schools and other neutral public fora primarily 
to summarize the procedures and policies our Office follows. These speeches 
fulfill an important function because the public must be confident at the 
end of the day that our ultimate decisions, whatever they may be, have 
resulted from a careful and thorough process conducted by dedicated and 
experienced professional prosecutors. We will continue, in appropriate and 
limited circumstances, to carry on this public information function. 
 
Sincerely, 
 
/s/ Kenneth W. Starr 
 
Independent Counsel